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Report No. 145

5.22. Conclusion.-

It may now be convenient to state very briefly our conclusion's regarding the proposed amendment of Article 12 of the Constitution:-

(i) Such an amendment would not be a proper or necessary measure to be adopted for dealing with the difficulties that may be experienced by Public Sector Undertakings in the matter of award of contracts, rejection of tenders, service matters and the like, arising out of the present applicability of Article 12 to such Undertakings.

(ii) Having regard to the Preamble and total philosophy of the Constitution, even if such an amendment is made, some of the problems experienced by the public sector undertakings would still survive under the ordinary law.

(iii) In particular, judicial intervention in the form of injunctions issued under the ordinary law cannot be ruled out, even after the suggested amendment.

(iv) It is highly doubtful whether, in the light of the theory of non-amendability of the basic features of the Constitution as at present recognised, such an amendment will pass muster on the Constitutional level.

We recommend accordingly.

K.N. Singh, Chairman.

Mohd. Sardar Ali Khan, Member.

D.N. Sandanshiv, Member.

P.M. Bakshi, Member (Part-time).

M. Marcus, Member (Part-time).

G.V.G. Krishnamurty, Member-Secretary.

New Delhi,
Dated: 13th November, 1992.

Minister of State,
Law and Justice,
Government of India,
New Delhi-110001.
30 March, 1987

Shri Justice D.A. Desai,

Law Commission,
Shastri Bhawan,
New Delhi.

Dear Shri Desai,

As you are aware, the Supreme Court has of late interpreted Article 12 of the Constitution holding that any agency or instrumentality of the Government will be covered by the expression "other authorities" occurring in that Article. The latest judgment of the Supreme Court is that of Central Inland Water Transport Corporation Limited v. Brojo Nath, reported in AIR 1986 SC 1571.

2. The matter was considered in a meeting of Committee of Secretaries on 19-1-1987, when it was decided that a formal reference to the Law Commission should now be immediately made for which purpose the Department of Public Enterprises would draw the necessary reference stating all the issues involved and send it to the Law Ministry for making a reference to the Law Commission. The Law Commission would be requested to treat this on an urgent basis and give their recommendations as early as possible.

3. Accordingly, the Bureau of Public Enterprises have sent to us the material for reference to the Law Commission and the same is enclosed.

4. I shall be grateful if the Law Commission could examine the issues raised by the Bureau of Public Enterprises and favour us with their recommendations on the subject as early as possible.

With kind regards,

Yours sincerely,
(H.R. Bhardwaj)

Encl.: As above:

Article 12 of the Constitution and Public Sector Undertakings Back

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